Bribery of a Foreign Public Official

What is the offence of Bribery of a Foreign Public Official?

Bribery of a Foreign Public Official is a Commonwealth offence under section 70.2 of the Criminal Code Act 1995. It involves offering, giving or promising a benefit with the intention of influencing a foreign official in the exercise of their duties. Maximum penalties differ for individuals and corporations.

Key points

The prosecution must prove an intentional benefit offer/provision connected to influencing a foreign public official.
The conduct covers giving, offering or promising a benefit (including causing it to be provided/offered/promised).
Usual court level: County Court.

The maximum penalty for Bribery of a Foreign Public Official For an individual is 10 years’ imprisonment or a fine of 10,000 penalty units, or both. Meanwhile for a corporation, it is greater of 100,000 penalty units, three times the benefit obtained, or 10% of the company’s annual turnover.

Common defences may include conduct lawful in the foreign public official’s country (s 70.3); facilitation payments that are minor, part of routine government action, and properly recorded (s 70.4).

The Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP) take a proactive and rigorous stance with respect to foreign bribery offences.

This includes investigation and prosecution of complex matters involving Australian and International parties, requiring transnational investigations and information sharing. They strongly encourage self-reporting of alleged bribery.

The CDPP has vast resources to dedicate to these cases and they routinely ask the Court to place great weight on the application of general deterrence, punishment and denunciation of the conduct as part of the sentencing process.

If you are alleged to have engaged in foreign bribery, it is important to receive expert advice as early as possible. We have acted in several foreign bribery cases, including in the Securrency Reserve Bank case. We have recently been involved in allegations of Foreign Bribery in the Pacific and others involving the jurisdictions of Singapore, Indonesia and Papua New Guinea. We have established international networks in Asia, Europe (primarily UK and Germany) and in the USA. We can utilise these networks to assist you in strongly defending the charges.

Police Interview

Have you been contacted by the AFP or believe they may contact you soon? You should contact a lawyer to obtain legal advice before attending any Police Interview. An interview is a critical part of the Police investigation which aims to gather evidence to be used against you. We can outline your rights and may be able to accompany you to the interview. Questions you may want to address with your lawyer about the interview process:

Should I answer the questions?
How long can they keep me at the police station?
Can they take my property?
Am I required to give the police access to any of my electronic devices?
When is the best time to start defending myself?
What is the process from here?

The Law

The offence can be found in section 70.2 of the Criminal Code Act 1995. It was amended on 8 September 2024 for simplification of the legal test.

Elements of the Charge of Bribery of a Foreign Public Official

A person is guilty of an offence if:
1. the person:
  1. provides a benefit to another person; or
  2. causes a benefit to be provided to another person; or
  3. offers to provide, or promises to provide, a benefit to another person; or
  4. causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
2. the first-mentioned person does so with the intention of improperly influencing a foreign public official (who may be the other person) in order to obtain or retain business or a business or personal advantage (whether or not for the first-mentioned person).
For the purposes of paragraph (1)(b):
1. the firstmentioned person does not need to intend to influence a particular foreign public official; and
2. the firstmentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and
3. business, or a business or personal advantage, does not need to be actually obtained or retained.

Examples of Bribery of a Foreign Public Official

A company wants to secure a contract with a government agency in a foreign country. To win the contract, the company offers a bribe to the official who is responsible for awarding the contract.
A company facing legal action or regulatory issue in a foreign country offers a bribe to a foreign official to influence the outcome of the legal issue in their favour.

Pre-Charge Investigation

We offer unique investigative services where we can thoroughly examine your version of events, obtain statements, documents and things which may support your defence or point to weaknesses in the police case against you. There may be opportunity to engage with the prosecution in advance to stop the investigation before the AFP proceed to charge you. We have the technological capabilities to analyse extremely large volumes of data including the use of AI e-discovery platforms. We are therefore well placed to expertly handle large scale cases.

Pleading Not Guilty

The AFP and the Commonwealth DPP are highly motivated in pursuing criminal charges in relation to bribery. To effectively defend the allegations, you will require the expertise and strategic planning of a criminal lawyer who is experienced in this area. It is important to carefully examine the brief of evidence looking for issues in the AFP case.

Defences

There are two legislated defences available in relation to the offence of Bribery of a Foreign Public Official:

The conduct was lawful in the foreign public official’s country (Section 70.3 of the  Criminal Code), and
The payments were facilitation payments – that is, it was minor in nature, given as part of routine government action, and was properly recorded. (Section 70.4 of the  Criminal Code). See here for further information: Facilitation of Payment in a Bribery Case.

There may be other possible defences including the conduct not being intended to influence the foreign official, or that there was no benefit to be derived. Each matter is unique and requires an individual approach and strategy.

Questions That are Asked in Cases Like This

Was the influence improper?
Did the person who provided the benefit did so intentionally to improperly influence a foreign public official?
Was the person who received the benefit a foreign public official?
Was the bribery committed in order to gain a benefit or advantage?

Pleading Guilty

If you decide to plead guilty, we work hard to resolve the case on the most favourable basis possible. There may be negotiations with the prosecution about the factual basis of the plea, or aspects of the charges.

We will work closely with you to gather information about yourself that is relevant for the Court to know and material that can be tendered on your behalf. The context and circumstances will be outlined, and submissions made about sentencing principles and purposes. After considering the material tendered and oral submissions made, the Judge will impose a penalty.

Maximum Penalty and Court That Deals With This Charge

The maximum penalty for the offence of Bribery of a Foreign Public Official (s70.2 of the  Criminal Code Act 1995) varies between individuals and corporations.

For an individual, it is 10 years’ imprisonment or a fine of 10,000 penalty units, or both.

For a corporation, the maximum penalty is whichever is the greater of the following:

100,000 penalty units
three times the benefit obtained, or
10% of the company’s annual turnover.

This is a very serious offence which is heard in the County Court.

What Can You Be Sentenced To for This Charge?

This charge is very serious and if found guilty, you are likely to face a significant fine or potentially a term of imprisonment.

The degree or extent of the bribery and the advantage gained or sought to be gained would be reflected in the Court’s sentencing, amongst many other factors.

If you are facing allegations of this nature, it is important that you contact a lawyer at Doogue + George who will expertly guide you through the process to achieve the best outcome for your case.

Frequently asked questions

What must the prosecution prove for Bribery of a Foreign Public Official?

The prosecution must prove that a person provided a benefit to another person, caused a benefit to be provided, offered or promised to provide a benefit, or caused an offer or promise to be made, and did so with the intention of improperly influencing a foreign public official (who may be the other person). The intention must be to obtain or retain business or a business or personal advantage, whether or not for the accused

Does the prosecution have to prove the accused intended to influence a specific foreign public official?

No. The offence does not require an intention to influence a particular foreign public official. It is sufficient that the conduct is carried out with the intention of improperly influencing a foreign public official. The element is directed to the nature of the intention, not the identity of a particular official.

What legislated defences apply to this offence?

Two legislated defences apply. One defence applies where the conduct was lawful in the foreign public official’s country (section 70.3 of the Criminal Code). Another defence applies where the payments were facilitation payments that were minor in nature, made as part of routine government action, and properly recorded (section 70.4 of the Criminal Code).

What is the facilitation payments defence?

The facilitation payments defence applies where the payment is minor in nature, given as part of routine government action, and properly recorded. Each of these requirements must be met. The defence is confined to payments that fit the statutory description and does not apply simply because a payment is described as a “facilitation payment”.

Which court deals with this charge?

This charge is heard in the County Court. It is treated as a very serious offence and is dealt with at that court level in the manner described for the charge.